CMS Real Estate Data Centre Consenting in Poland

In Poland there are no specific requirements to enter into any agreement with the local authority/municipality when applying for decisions regarding a data centre investment (please note, that in the Polish jurisdiction there is no one universal data centre consent, but the investment is subject to the standard development process, requiring obtainment of construction decisions being the same as for other classes of assets).

In certain cases, local authorities may require the construction/reconstruction of some local infrastructure related to the planned data centre investment, such as road or utility infrastructure. Depending on the case and the practice of a particular local authority, it may be necessary for the investor to enter into an agreement for the construction/reconstruction of such local infrastructure and cover costs of construction/reconstruction of such infrastructure.

Datacentres are quite a new class of development in Poland and are not specifically regulated in respective Polish Acts. There are only few examples when master plans mention directly data centres as permitted to be constructed on certain areas.

In practice, data centres are most often located in service or production areas designated in master plans. In case of a lack of a Local Master Plan, a planning decision (zoning permit) is required, and the reference point for the planning decision is the vicinity of industrial or warehouse buildings.

For an initial planning decision (issued by local authority) in case of lack of a Local Master Plan investors do not have to own the land at all.

For next steps regarding the obtainment of the building permit for development of the investment, the investor is required to have a legal title to the land allowing to confirm, that the investor is entitled to develop the investment on particular plots. It may be based on the ownership but also on other type of title to the land, such as a tenancy/lease of the plots.

The main steps to secure data centre consent in the Polish jurisdiction are:

1. If required due to scope of a particular investment – obtainment of the decision on environmental conditions. The statutory deadline for local authorities to issue an administrative decision is 30 days but could be prolonged to 2 months (in practice it may take longer, even up to 6 months, depending on practice of particular local authority and scope of particular investment).
2. If no Local Master Plan is in force in particular area – obtainment of the zoning permit (planning decision) concerning location of the data centre investment. The statutory deadline for the local authority to issue the decision is 90 days (however in practice it may take longer, even up to 9 months, depending on practice of the particular local authority).
3. Obtainment of the building permit. The statutory deadline for the local authority to issue the decision is 65 days (however in practice it may take longer, even up to 6 months, depending on the practice of the particular local authority).
4. Obtainment of the occupancy permit (permit for use) after completion of the investment. The statutory deadline for the local authority to issue the decision is 30 days but could be prolonged to 2 months (in practice it may take longer, even up to 3 months, depending on the practice of the particular local authority and scope of the particular investment).

Yes, it’s required to obtain arrangements / formal conditions agreed with particular utilities providers for investment during the consenting process (usually during obtainment of zoning/building permission).

As mentioned above, data centres as a new class of assets are not explicitly mentioned and regulated by Polish Law, including Polish Law concerning planning aspects. Therefore, with individual exceptions, as for now there are no clear land plans or zones in place which automatically authorise data centres.

In such event, development of data centre requires steps described in general in point 4 above, including assessment of respective local act (Local Master Plan) whether such an investment falls within one of the land use classes specified therein. As described in Point 2 above, in practice, data centres are most often located in service or production areas, and the reference point for the planning decision in case of a lack of a local Master Plan is the vicinity of industrial or warehouse buildings.

Depending on scale of particular data centre investment, the development of data centre may require obtaining a decision on environmental conditions requiring screening and/or a full environmental impact assessment (“EIA”). If an EIA is required, an environmental assessment report must be submitted, which includes, inter alia, a description of the project and its impact on the various elements of the environment.

Where the decision on environmental conditions is required, it must be submitted with the zoning permit application or building permit application (if a Local Master Plan is in force and zoning permit is not required) within 6 years of the date on which the decision on environmental conditions became final, with the possibility of extending this period to 10 years.

It should also be noted that the need for the decision on environmental conditions may additionally attract attention from wider consultees, including environmental activists, in which case they might take part in the permitting procedure on certain conditions.

There are no biodiversity requirements specifically for data centres investments (as mentioned above, due to fact, that Polish Law does not specifically mention data centres). Nevertheless, general planning conditions (either included in zoning permit or Local Master Plan) usually include some biodiversity requirements, providing that part of the plot intended for the investment should remain biologically active.